no. 19-3413 united states court of appeals for the …
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No. 19-3413 UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
James M. Sweeney and International ) Union of Operating Engineers Local 150, ) AFL-CIO, ) ) Plaintiffs-Appellants, ) ) v. ) ) Kwame Raoul, in his official capacity as ) Attorney General for the State of Illinois; ) and Kimberly Stevens, in her official ) capacity as Executive Director of the ) Illinois Labor Relations Board, ) ) Defendants-Appellees. )
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division Case No. 18-cv-1362
The Honorable Judge Sharon Johnson Coleman
BRIEF AND REQUIRED SHORT APPENDIX OF PLAINTIFFS-APPELLANTS
Dale D. Pierson ([email protected]) Kara M. Principe ([email protected]) Robert A. Paszta ([email protected]) Joseph Sweeney ([email protected]) James Connolly, Jr. ([email protected]) Indiana, Illinois, Iowa Foundation Local 150 Legal Department for Fair Contracting 6140 Joliet Road 6170 Joliet Road Countryside, IL 60525 Countryside, IL 60525 Ph. 708/579-6663 Ph. 815/254-3332 Fx. 708/588-1647 Fx. 815/254-3525
ORAL ARGUMENT REQUESTED
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DISCLOSURE STATEMENTS
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TABLE OF CONTENTS DISCLOSURE STATEMENTS ..................................................................................................... ii TABLE OF CONTENTS .............................................................................................................. vii TABLE OF AUTHORITIES ....................................................................................................... viii JURISDICTIONAL STATEMENT ............................................................................................... 1
STATEMENT OF THE ISSUE ...................................................................................................... 2
STATEMENT OF THE CASE ....................................................................................................... 2
A. Public Sector Collective Bargaining in Illinois ............................................................ 2
B. Local 150’s Representation of Public Employees ........................................................ 3
C. Local 150’s Lawsuit Challenging the Obligation to Represent Nonmembers in Grievances for Free ....................................................................................................... 6
SUMMARY OF THE ARGUMENT ............................................................................................. 9
STANDARD OF REVIEW .......................................................................................................... 10
ARGUMENT ................................................................................................................................ 11
A. The Supreme Court’s Decision in Janus Constitutionalizes the Rights of Unions and Their Members. .................................................................................................... 11
B. After Janus, Public Sector Unions Can Require Nonmembers to Pay for Services or Deny Them Representation. ..................................................................... 15
C. The Right of Individual Employees to Pursue Their Own Grievances Is an Exception to Exclusive Representation. ..................................................................... 17
D. The Janus Alternative Is an Accommodation to Unions for the Deprivation of Fair Share Fees and Does Not Undermine Exclusive Representation. ....................... 23
CONCLUSION ............................................................................................................................. 27
CERTIFICATE OF COMPLIANCE ............................................................................................ 28
CERTIFICATE OF SERVICE ..................................................................................................... 29
CIRCUIT RULE 30(d) STATEMENT ......................................................................................... 30
REQUIRED SHORT APPENDIX ............................................................................................... 31
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TABLE OF AUTHORITIES Cases Abood v. Detroit Board of Education, 431 U.S. 209 (1977) ................................................ 2, 3, 26 Agostini v. Felton, 521 U.S. 203 (1997) ....................................................................................... 23 Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974) ............................................................... 13 Calumet River Fleeting, Inc. v. IUOE Local 150, 824 F.3d 645 (7th Cir. 2016) ......................... 10 Cintron v. AFSCME, Council 31, No. S-CB-16-032, 34 PERI ¶ 105 (ILRB Dec. 13, 2017)
.................................................................................................................................................. 15 Citizens United v. Federal Election Commission, 558 U.S. 310 (2010) ...................................... 12 Communications Workers of America v. Beck, 487 U.S. 735 (1988) ..................................... 25, 26 Cone v. Nevada Service Employees Union/SEIU Local 1107, 116 Nev. 473 (2000) ................... 19 DelCostello v. Teamsters, 462 U.S. 151 (1983) ............................................................................. 9 Essary v. Chicago & N.W. Ry. Co., 618 F.2d 13 (7th Cir. 1980) ................................................. 18 Ford Motor Co. v. Hoffman, 345 U.S. 330 (1953) ....................................................................... 20 Grossman v. Hawaii Government Employees Ass’n/AFSCME Local 152, 382 F. Supp. 3d
1088 (D. Haw. 2019) ................................................................................................................ 24 Hensley v. Eckerhart, 461 U.S. 424 (1983) .................................................................................. 21 Hill v. Service Employees International Union, 850 F.3d 861 (7th Cir. 2017) ...................... 13, 23 Hughes Tool Co., 56 NLRB 981 (1944) ....................................................................................... 18 In re United Airlines Inc., 453 F.3d 463 (7th Cir. 2006) .............................................................. 10 Janus v. AFSCME Council 31, 585 U.S. ___, 138 S.Ct. 2448 (2018) ........................................ 2, 6 Janus v. AFSCME Council 31, 942 F.3d 352 (7th Cir. 2019) ................................................ 14, 23 Jones & Laughlin Steel, Inc. v. NLRB, 301 U.S. 1 (1937) ............................................................ 11 Knox v. SEIU Local 1000, 567 U.S. 298 (2012) ........................................................................... 12 Mahoney v. Chicago, 293 Ill. App. 3d 69 (1st Dist. 1997) ........................................................... 13 Marquez v. Screen Actors Guild, 525 U.S. 33 (1998) .................................................................. 26 Metro. All. of Police v. State Labor Relations Bd., Local Panel, 345 Ill. App. 3d 579 (1st
Dist. 2003) .......................................................................................................................... 15, 20 Minnesota State Community College Board v. Knight, 465 U.S. 271 (1984) ........................ 23, 24 Montele v. Inslee, 916 F.3d 783 (9th Cir. 2019) ........................................................................... 24 Moore v. Sun Beam Corp., 459 F.2d 811 (7th Cir. 1972) ............................................................. 21 NLRB v. General Motors Corp., 373 U.S. 734 (1963) ................................................................. 25 O’Callaghan v. Regents of the University of California, 2019 WL 2635585 (C.D. Cal.
2019) ......................................................................................................................................... 24
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Price v. City of Chicago, 915 F.3d 1107 (7th Cir. 2019) .............................................................. 23 Roberts v. United States Jaycees, 468 U.S. 609 (1984) .......................................................... 12, 21 Stahulak v. City of Chicago, 184 Ill. 2d 176 (1998) ..................................................................... 14 Steele v. Louisville Railroad, 323 U.S. 192 (1944) ............................................................ 9, 15, 21 Sweeney v. Madigan, 359 F. Supp. 3d 585 (N.D. Ill. 2019) ....................................................... 3, 7 Thomas v. Collins, 323 U.S. 516 (1945) ....................................................................................... 12 Vaca v. Sipes, 386 U.S. 171 (1967) .................................................................................. 15, 20, 22 Wooley v. Maynard, 430 U.S. 705 (1977) .................................................................................... 12 Statutes 28 U.S.C. § 1291 ............................................................................................................................. 1 28 U.S.C. § 1331 ............................................................................................................................. 1 28 U.S.C. § 2201 ............................................................................................................................. 1 28 U.S.C. § 2202 ............................................................................................................................. 1 29 U.S.C. § 157 ............................................................................................................................. 14 29 U.S.C. § 158(a)(3) .................................................................................................................... 14 29 U.S.C. § 159(a) .......................................................................................................................... 9 29 U.S.C. § 9(a) ...................................................................................................................... 10, 18 42 U.S.C. § 153, First(i)(j) ............................................................................................................ 10 5 ILCS § 315/6(g) ......................................................................................................................... 13 5 ILCS 315/1 ................................................................................................................................... 4 5 ILCS 315/10(b)(1)(ii)........................................................................................................... 14, 15 5 ILCS 315/5(d)(e) ........................................................................................................................ 15 5 ILCS 315/6(b) ...................................................................................................................... 17, 19 5 ILCS 315/6(c) .............................................................................................................................. 3 5 ILCS 315/6(d) ............................................................................................................ 3, 14, 15, 20 Illinois Educational Labor Relations Act (IELRA) ........................................................................ 2 Minnesota, Minn. Stat. Ann. § 176.16 .......................................................................................... 18 National Labor Relations Act (NLRA) .................................................................................. passim Railway Labor Act (RLA) ..................................................................................................... passim Washington, Wash. Rev. Code Ann. § 41.56.080 ........................................................................ 19 Other Authorities Employee and Union Member Guide to Labor Law, § 11:7 (Thomson Reuters, Rel. 32,
5/2019) ...................................................................................................................................... 22
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Sally J. Whiteside, et al., Illinois Public Labor Relations Law: A Commentary and Analysis, 60 Chi.-Kent L. Rev. 883 (1984) ...................................................................... 2, 3, 19
Articles Arizona Ban on Closed Shop, 20 LRRM 3005 (1947) ................................................................. 25 Georgia Ban on Closed Shop, 19 LRRM 3045 (1947) ................................................................. 25 Iowa Ban on Closed Shop, 20 LRRM 3007 (1947) ...................................................................... 25 North Dakota Ban on Closed Shop, 19 LRRM 3045 (1947) ........................................................ 25 Tennessee Anti-Closed Shop Law, 19 LRRM 3034 (1947) ......................................................... 25 Virginia Anti-Closed Shop Law, 19 LRRM 3023 (1947) ............................................................ 25 Constitutional Provisions United States Constitution, First Amendment ....................................................................... passim
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JURISDICTIONAL STATEMENT The District Court had subject-matter jurisdiction of the case that was docketed as No. 18-
cv-1310 pursuant to 42 U.S.C. §§ 1983, et seq. because the action arose under the Constitution and
laws of the United States. The District Court had jurisdiction over the federal claims pursuant to
28 U.S.C. § 1331. The District Court had the authority to grant declaratory relief under 28 U.S.C.
§§ 2201 and 2202 and Federal Rule of Civil Procedure 57, Fed. R. Civ. P. 57.
This Court has appellate jurisdiction of this case because it is an appeal from a final
judgment rendered by the United States District Court for the Northern District of Illinois, which
is a district court within its geographic coverage. 28 U.S.C. § 1291.
This appeal is timely because it was filed within 30 days from the date of the order denying
Appellants’ motion for summary judgment under Rule 56, Fed. R. Civ. P. 56. Federal Rules of
Appellate Procedure 4(a)(1) and 4(a)(4)(A)(iv). The District Court’s final judgment was rendered
November 12, 2019 (Doc. #82, filed 11/12/19). The 30th day following the date of the District
Court’s entry of the Order was Thursday, December 12, 2019. Therefore, the Notice of Appeal
was timely filed on Monday December 9, 2019 (Doc. #83, filed 12/09/19).
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STATEMENT OF THE ISSUE Whether the District Court erred in interpreting Local 150’s claims as a challenge to
exclusive representation generally, rather than address the Union’s claim that after the Supreme
Court’s decision in Janus v. AFSCME Council 31, 585 U.S. ___, 138 S.Ct. 2448 (2018), unions
who represent public sector employees and their members have the First Amendment right to
charge public sector nonmembers for the cost of representing them in grievances or refuse to
represent them altogether.
STATEMENT OF THE CASE A. Public Sector Collective Bargaining in Illinois In Abood v. Detroit Board of Education, 431 U.S. 209 (1977), the Supreme Court ruled
that unions representing public employees could constitutionally assess nonmembers an “agency
fee” for representing them in collective bargaining. Janus, 138 S.Ct. at 2460-2461. While unions
could not require nonmembers to support political causes with which they disagreed, the Abood
Court held that the First Amendment did not bar compelled payments of fees to be used in support
of collective bargaining, contract-administration, and enforcement. Id.
In the wake of Abood, many states including Illinois enacted legislation that would regulate
labor relations and collective bargaining in the public sector. Specifically, in 1984, “Illinois
granted public employees legally protected bargaining rights through the enactment of the Illinois
Public Labor Relations Act (IPLRA) and the Illinois Educational Labor Relations Act (IELRA).”
Sally J. Whiteside, et al., Illinois Public Labor Relations Law: A Commentary and Analysis, 60
Chi.-Kent L. Rev. 883 (1984). In so doing, “the legislature…expressly stated that it intended to
follow the National Labor Relations Act (NLRA) to the extent feasible.” Id.
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The Illinois legislature followed federal labor law in several ways. It adopted the “majority
rule” model of the NLRA which provided for employer recognition of an exclusive bargaining
representative of its employees voluntarily based upon a showing of majority support or after a
state labor board-conducted secret-ballot election. Whiteside, supra at 892-896; 5 ILCS 315/6(c).
It also adopted a “duty of fair representation” provision which “reflects judicial rulings in fair
representation cases in the private sector.” Whiteside, supra at 923; 5 ILCS 315/6(d). And the
legislature authorized public employers and exclusive representatives “to negotiate for a
provision…requiring ‘fair share’ payments from non-union members.” Whiteside, supra at 924; 5
ILCS 315/6(e). As the District Court observed in its preliminary decision in Sweeney v. Madigan,
359 F. Supp. 3d 585, 588 (N.D. Ill. 2019) (Required Short Appendix of Plaintiffs-Appellants
(“App.”) at 7):
In exchange for conferring this exclusivity, the IPLRA requires that exclusive representatives must represent all public employees in a bargaining unit, including those who are not union members. 5 ILCS 315/6(d). To offset this burden, IPLRA allowed a labor union that is an exclusive representative to charge non-member bargaining unit employees agency fees, commonly described as “fair share” fees, to compensate for activities germane to the collective bargaining process. 5 ILCS 315/6(e).
According to the Whiteside commentators, “it was the legislature’s expressed intention that the
fair share provisions in both Acts comport with existing judicial precedent” and in reliance upon
Abood. Whiteside, supra at 924 and fn. 264.
B. Local 150’s Representation of Public Employees
Plaintiff-Appellant Local 150 of the International Union of Operating Engineers, AFL-CIO
(“Local 150” or the “Union”), is a labor organization and unincorporated association with its
primary office in Countryside, Illinois (ECF Doc. #76, Defendants’ Response to Local 150’s
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Statement of Uncontested Material Facts, (“Facts”) ¶ 1 at p. 1, App. at 14).1 Local 150 represents
over 23,000 members, over 3,000 of whom are employees covered by the IPLRA, 5 ILCS 315/1,
et seq. (id.). Plaintiff James M. Sweeney is the President-Business Manager of Local 150 and a
member of the Union (ECF Doc. #76, Facts ¶ 2 at p. 1, App. at 14).
In about 1989-1990, Local 150 began organizing public employees outside the City of
Chicago (ECF Doc. #76, Facts ¶ 9 at p. 3, App. at 16). It was the Union’s experience that as
communities in the Chicago suburbs and elsewhere in Illinois matured, they began to self-perform
maintenance of roads, sewer and water systems, and a variety of other tasks which involved the
operation of heavy construction equipment (id.). Since 1989, Local 150 has organized and
represented employees in the public works, sewer and water, and other departments in
municipalities throughout northern Illinois and northwest Indiana (ECF Doc. #76, Facts ¶ 10 at
p. 3, App. at 16). Local 150 currently represents approximately 3,300 employees in about 133
bargaining units of public employees employed by municipalities and other units of local
government (id.).
Local 150 employs nine staff members in the Union’s Public Sector Department to
represent public employees (ECF Doc. #76, Facts ¶ 11 at pp. 3-4, App. at 16-17). That Department
consists of three attorneys whose primary responsibilities include litigation before state agencies
including the Illinois Labor Relations Board (ILRB) and state and federal courts; contract
negotiations with public employers; and arbitration of contract disputes (id.). It also includes four
Business Agents who represent employees in resolving day-to-day disputes, assisting employees
in resolving grievances, and responding to employer information requests (id.). At least two
1 For the most part, the State Defendants did not dispute Local 150’s Facts (ECF Doc. #76, App. at 14-20).
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clerical employees also serve this department (id.). These staff members report to Sweeney as
well as two other Officers of the Union working out of the Countryside Union Hall (id.).
The total cost of Local 150’s Public Sector Department in 2018 was $5,083,445.00 (ECF
Doc. #76, Facts ¶ 12 at p. 4, App. at 17). This includes employees’ salaries and benefits; prorated
costs of office space, utilities, and other charges; automobiles used by staff to service the public
employee bargaining units; and costs associated with representing employees in arbitration and
litigation (id.).
Throughout the time Local 150 has represented public employees in Illinois, it has
negotiated union security clauses into the collective bargaining agreements with public employers
which include “fair share” provisions (ECF Doc. #76, Facts ¶ 13 at p. 4). Those provisions
typically read (id.):
Fair Share Any present employee who is not a member of Local Union #150 shall, as a condition of employment, be required to pay a Fair Share (not to exceed the amount of Union dues) of the cost of the collective bargaining process, contract administration in pursuing matters affecting wages, hours, and other conditions of employment, but not to exceed the amount of dues uniformly required by members. All employees hired on or after the effective date of this Agreement and who have not made application for membership shall, on or after the thirtieth (30th) day of their employment, also be required to pay a Fair Share as defined above. Since the decision by the Supreme Court in Janus, approximately 30 public employees
represented by Local 150 have resigned their membership in the Union and/or ceased paying fair
share (ECF Doc. #76, Facts ¶ 14 at p. 4). Full dues and fees paid by each public sector member to
Local 150 averaged $1,680.00 for the year of 2018 (ECF Doc. #76, Facts ¶ 17 at p. 5). The dues
or fair share fees lost to Local 150 easily exceed $50,000.00 per year (id.). Nevertheless, despite
this loss of revenue, Local 150’s staff has remained unchanged and its costs have incrementally
increased (id.).
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Resignation letters received by President-Business Manager Sweeney’s office from public
employees represented by Local 150 include, in part, the request that the Union “immediately
cease deducting all dues, fees, and political contributions from my wages, as is my constitutional
right in light of the U.S. Supreme Court’s ruling in Janus v. AFSCME.” (ECF Doc. #76, Facts ¶
19 at p. 6, App. at 19). These letters also include the demand that despite their refusal to pay “all
dues, fees, and political contributions,” “the union must continue to represent me fairly and without
discrimination in dealings with my employer and cannot, under any circumstances, deny me any
wages, benefits, or protections provided under the collective bargaining agreement with my
employer.” (id.).
Local 150 objects to the compelled representation imposed upon it by Illinois law in
processing grievances for nonmembers who refuse to pay full dues or fair share fees (ECF Doc.
#76, Facts ¶ 20 at p. 6, App. at 19). The Union’s members are now required to subsidize speech
on behalf of nonmembers and associate with them in violation of their First Amendment rights.
After Janus, the provisions of the IPLRA compelling Local 150 and its members to process
grievances for nonmembers are unconstitutional.
C. Local 150’s Lawsuit Challenging the Obligation to Represent Nonmembers in Grievances for Free
Anticipating the decision at which the Supreme Court ultimately arrived in Janus, on
February 22, 2018, Plaintiffs Sweeney and Local 150 filed this lawsuit (Doc. #1, later amended
April 9, 2018 (Doc. #21)). Local 150 alleged that if the Supreme Court ruled that “fair share” fees
nonmembers of public employee unions were required to pay under Illinois law are
unconstitutional, then the corresponding duty of Illinois public employee unions to represent
nonmembers fairly in grievance-arbitration proceedings is likewise unconstitutional (ECF Doc.
#1, Complaint ¶ 13 at 4, ¶ 28 at 7, ¶ 31 at 8-9).
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On August 10, 2018, the State Defendants moved to dismiss the Second Amended
Complaint primarily on standing and ripeness grounds (Doc. # 31, Motion to Dismiss, at p. 1). On
February 6, 2019, the District Court denied Defendants’ Motion to Dismiss (Doc. #52, App. at 6).
In its decision, the Court found that Local 150 had standing to bring its Complaint, and that its
claims were ripe for review as facial challenges to the IPLRA. Sweeney v. Madigan, 359 F. Supp.
3d 585 (N.D. Ill. 2019). As the District Court explained (id. at 590, App. at 10):
Although it may be true that nothing has changed except for the Supreme Court’s decision in Janus, that decision altered the nature of the plaintiffs’ preexisting statutory obligations and created the imminent constitutional injury alleged to exist here. This injury is sufficient to establish both that standing exists and that there is a dispute ripe for resolution with respect to the plaintiffs’ claims arising directly from their duty of representation.
On April 19, 2019, the District Court ordered the parties to file cross-motions for summary
judgment (Doc. #65).2 Local 150 argued that once the Supreme Court found a First Amendment
right of nonmembers not to support their bargaining representative, the First Amendment rights of
members to refrain from supporting nonmembers necessarily follows. In other words, if
nonmembers can no longer be compelled to subsidize union speech with which they disagree,
unions and their members may not be forced to subsidize the speech of free-riding nonmembers.
Local 150 relied on the Supreme Court’s statement that “compelling a person to subsidize the
speech of other private speakers raises similar First Amendment concerns.” Janus, 138 S.Ct. 2464
(emphasis in original); and that “[e]ven union speech in the handling of grievances may be of
substantial public importance.” Id. at 2476. Because the IPLRA compels Local 150 and its
members to subsidize the speech of nonmembers pursuing grievances, 5 ILCS § 315/10(b)(1),
2 The Court also suggested that Local 150 file an amended complaint recognizing the fact that the Supreme Court had decided Janus since the original filing (Doc. #52, Order entered 02/06/19). On February 25, 2019, the Union filed its Third Amended Complaint, deleting the counts rejected by the Court and refiling the case as Sweeney v. Raoul, et al., in light of the election of Kwame Raoul as Illinois Attorney General (ECF Doc. #56).
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Local 150 argued that compulsion is unconstitutional. Instead, Local 150 argued that the less
restrictive alternative to fair share fees identified in Janus should be allowed: “individual
nonmembers could be required to pay for [representation in disciplinary matters] or could be
denied representation altogether.” 138 S.Ct. at 2468-2469.
After full briefing, on November 12, 2019, the District Court entered its “Memorandum
Opinion and Order,” granting Defendants’ summary judgment motion and denying that of Local
150 (ECF Doc. #81, 2019 WL 5892981 *1 (November 12, 2019). In so doing, the Court observed
(id. at Page 2 of 5, App. at 2):
In Janus, the Supreme Court held that compulsory fair-share or agency fee arrangements under the IPLRA violated the First Amendment “free speech rights of nonmembers by compelling them to subsidize private speech on matters of substantial public concern.” Id. at 2460. Local 150 now argues that after Janus, the designation of Illinois public employee unions as the exclusive representative for a bargaining unit, and the concomitant duty of Illinois unions to represent nonmembers fairly, is also unconstitutional under the First Amendment. Specifically, Local 150 argues that the reasoning in Janus allows unions to refuse to represent non-union members because “unions and union members have the right under the First Amendment to refuse to associate with free-riding nonmembers. These free-riders increase the financial burden on dues-paying members and adversely affect the members[sic] ability to pursue collective efforts.” In making this argument, Local 150 asks the Court to read Janus too broadly and ignore recent Seventh Circuit precedent.
Nowhere in the proceedings before the District Court did Local 150 argue that the
foundational principle of exclusive representation is unconstitutional. Relying on Janus, 138 S.Ct.
at 2468-2469, throughout its briefs, the Union argued that the “narrowly tailored” alternative to
fair share fees allowed the Union to refuse to represent nonmembers in handling grievances or
could charge them for their services (ECF Doc. #71, Local 150’s Brief in Support of Summary
Judgment, at p. 1; ECF Doc. #74, Local 150’s Response in Opposition to Defendants’ Motion for
Summary Judgment at pp. 1, 3-4; ECF Doc. #78, Local 150’s Reply Brief in Support of Its Motion
for Summary Judgment at pp. 1-3).
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The District Court mischaracterized Local 150’s argument as a challenge to exclusive
representation, then correctly applied existing Supreme Court and Seventh Circuit caselaw to reject
such a challenge. In doing so, however, the District Court decided a different case. This was an
error.
SUMMARY OF THE ARGUMENT The Supreme Court’s decision in Janus constitutionalizes the free speech and association
rights of public sector employees and their unions. Without an affirmative right to organize and
support unions financially, there can be no right to refrain from doing so. See Janus, 138 S.Ct. at
2459-2460 (the Illinois law which “forced” public employees to subsidize a union “violates the
free speech rights of non-members by compelling them to subsidize private speech on matters of
substantial public concern.”). If, as Janus holds, nonmembers have a First Amendment right not
to “subsidize” private speech, then surely public sector union members have a First Amendment
right to support that speech.
Labor relations in the United States is based upon the principle of exclusive representation.
E.g., 29 U.S.C. § 159(a). In its debates over the passage of the National Labor Relations Act
(NLRA), for example, Congress adopted the policy of “Majority Rule.” Hence, once a majority
of the employees in any given bargaining unit vote for a particular representative, that
representative has the exclusive right to bargain with their employer. See also Railway Labor Act
(RLA), 45 U.S.C. § 152, Fourth. To protect the rights of minorities, the Supreme Court soon
thereafter recognized that exclusive representation implied an obligation to represent all members
of the bargaining unit fairly, regardless of their race or support for the union. Steele v. Louisville
R.R., 323 U.S. 192 (1944); DelCostello v. Teamsters, 462 U.S. 151 (1983). The IPLRA adopted
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both the principles of exclusive representation and the duty of fair representation. 5 ILCS 315/6(c)-
(d).
Congress has always recognized at least one significant exception to exclusive
representation. Under both the RLA and the NLRA, individual employees are authorized to
present their own grievances to their employers. 42 U.S.C. § 153, First(i)(j); 29 U.S.C. § 9(a).
States such as Illinois have incorporated that exception into their public labor relations laws (5
ILCS 315/6(b)):
Nothing in this Act prevents an employee from presenting a grievance to the employer and having the grievance heard and settled without the intervention of an employee organization; provided that the exclusive bargaining representative is afforded the opportunity to be present at such conference and that any settlement made shall not be inconsistent with the terms of any agreement in effect between the employer and the exclusive bargaining representative.
Consistent with this exception to exclusive representation and the historic concern for
“free-riders,” the Supreme Court in Janus recognized an alternative “less restrictive” of employee
First Amendment rights than the “forced” payment of fair share fees: “Individual nonmembers
could be required to pay for [representation in disciplinary matters] or could be denied
representation altogether.” 138 S.Ct. at 2468-2469. It is that “less restrictive” alternative which
Local 150 seeks in this case. No challenge to exclusive representation is presented here.
STANDARD OF REVIEW A district court’s decision on cross-motions for summary judgment is reviewed de novo.
Calumet River Fleeting, Inc. v. IUOE Local 150, 824 F.3d 645, 647-8 (7th Cir. 2016). The general
standards for summary judgment do not change with cross-motions. The Court construes all facts
and inferences therefrom “in favor of the party against whom the motion under consideration is
made.” Id., quoting, In re United Airlines Inc., 453 F.3d 463, 468 (7th Cir. 2006).
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ARGUMENT This case presents an issue that is the mirror image of Janus: Whether the Union and its
individual dues-paying members can be compelled by the State to subsidize the speech of
nonmembers and/or associate with them in processing grievances? The holding in Janus is
therefore controlling (138 S.Ct. at 2459-2460):
[The Illinois law which] forced [public employees] to subsidize a union, even if they chose not to join and strongly object to the positions the union takes in collective bargaining and related activities…violates the free speech rights of non-members by compelling them to subsidize private speech on matters of substantial public concern.
That same Illinois law which compels Local 150 and its public sector members over their
objections to subsidize the speech of nonmembers and associate with them in processing
grievances and representing them in arbitrations is likewise unconstitutional.
A. The Supreme Court’s Decision in Janus Constitutionalizes the Rights of Unions and Their Members.
The Janus decision made clear that collective bargaining is speech, that representation by
a union is an associational right, and that both are protected by the First Amendment. 138 S.Ct. at
2475-2477; U.S. Const. amend. 1, XIV. However, Section 10(b)(1)(ii) of the IPLRA as written,
compels unions to speak on behalf of and associate with nonmembers. 5 ILCS 315/10(b)(1)(ii).
The Union and its members have the same First Amendment rights as Janus granted to
nonmembers. The appropriate remedy in this case is to strike down Section 10(b)(1)(ii) of the
IPLRA as unconstitutional to the extent it requires the Union to represent nonmembers in
grievance proceedings for free. Janus, 138 S.Ct. at 2468-2469.
The rights of individual employees to organize unions have long been considered
“fundamental,” Jones & Laughlin Steel, Inc. v. NLRB, 301 U.S. 1, 33 (1937) (“the right of
employees to self-organization and to select representatives of their own choosing for collective
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bargaining or other mutual protection without restraint or coercion by their employer…is a
fundamental right.”). In Thomas v. Collins, 323 U.S. 516, 532 (1945), the Supreme Court
explained why union activity is protected by the First Amendment:
Free discussion concerning the condition in industry and the causes of labor disputes appears to us indispensable to the effective and intelligent use of the processes of popular government to shape the destiny of modern industrial society…The right thus to discuss, and inform people concerning, the advantages and disadvantages of unions and joining them is protected not only as a part of free speech, but as part of free assembly.
Unions themselves have free speech rights protected by the First Amendment. Knox v. SEIU Local
1000, 567 U.S. 298, 321-322 (2012), relying on Citizens United v. Federal Election Commission,
558 U.S. 310 (2010). It is now clear that union members and nonmembers need not associate with
each other, Janus, 138 S.Ct. at 2463-2464; nor can they be compelled to support each other’s
speech. Id.
In Janus, the U.S. Supreme Court held that a union’s representation of a public sector
bargaining unit was speech, Janus, 138 S.Ct. at 2464, and that “[e]ven union speech in the handling
of grievances may be of substantial public importance.” Id. at 2476. The Court then held that a
“fair share scheme” compelling a nonmember to subsidize the speech of the union violated the
First Amendment. Id. “In simple terms,” the Court explained, “the First Amendment does not
permit the government to compel a person to pay for another’s speech just because the government
thinks that speech furthers the interests of the person who does not want to pay.” Id. at 2467.
The principle upon which the Supreme Court based its holding in Janus is fundamental.
The First Amendment rights to speak and associate include the rights not to do so. Janus, 138
S.Ct. at 2463, relying on Wooley v. Maynard, 430 U.S. 705, 714 (1977) (freedom of speech
“includes both the right to speak freely and the right to refrain from speaking at all”); Roberts v.
United States Jaycees, 468 U.S. 609, 623 (1984) (“Freedom of association…plainly presupposes
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a freedom not to associate”); see also Hill v. Service Employees International Union, 850 F.3d
861, 863 (7th Cir. 2017). In Roberts, the Supreme Court added (id. at 623) (internal citations
omitted):
The right to associate for expressive purposes is not, however, absolute. Infringements on that right may be justified by regulations adopted to serve compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms.
In Janus, the Supreme Court recognized that unions have alterative means “significantly
less restrictive of associational freedoms” than the imposition of agency fees in the representation
of nonmembers in disciplinary matters. 138 S.Ct. at 2468. Ordinarily, “the union is required by
law to provide fair representation for all employees in the unit, members and non-members alike.”
Id. at 2460. The Court recognized, however, that “as a practical matter” when a union controls the
grievance process, “it may…effectively subordinate ‘the interests of [an] individual employee…to
the collective interests of all employees in the bargaining unit.’” Id. at 2468, quoting Alexander v.
Gardner-Denver Co., 415 U.S. 36, 58 n.19 (1974); citing with approval Mahoney v. Chicago, 293
Ill. App. 3d 69, 73-74 (1st Dist. 1997) (union has discretion to refuse to process a grievance
provided it does not act arbitrarily or in bad faith (internal quotations omitted)). Hence, the Court
concluded (id. at 2468-2469) (internal citation omitted):
In any event, whatever unwanted burden is imposed by the representation of nonmembers in disciplinary matters can be eliminated “through means significantly less restrictive of associational freedoms” than the imposition of agency fees… Individual nonmembers could be required to pay for that service or could be denied union representation altogether.
Relying in part on Section 6(g) of the IPLRA which allows unions to charge religious objector
nonmembers an equivalent service fee, 5 ILCS § 315/6(g), the Supreme Court noted that, “This
more tailored alternative, if applied to other objectors, would prevent free ridership while imposing
a lesser burden on First Amendment rights.” Janus, 138 S.Ct. at 2469, n.6.
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The State of Illinois compels Local 150 and its public sector members to speak for
nonmembers and to associate with them. The IPLRA adopts the common labor relations regime
of “exclusive representation.” 5 ILCS 315/6(d) (ECF Doc. #67, Facts ¶¶ 6 at 2). As this Court
observed in its follow-up decision last year (Janus v. AFSCME Council 31, 942 F.3d 352, 354 (7th
Cir. 2019)):
The principle of exclusive union representation lies at the heart of our system of industrial relations; it is reflected in both the Railway Labor Act (“RLA”), 45 U.S.C. §§ 151-165 (first enacted in 1926), and the National Labor Relations Act (“NLRA”), 29 U.S.C. §§ 151-169 (first enacted in 1935). In its quest to provide for “industrial peace and stabilized labor-management relations,” Congress authorized employers and labor organizations to enter into agreements under which employees could be required either to be union members or to contribute to the costs of representation—so-called “agency-shop” arrangements. See 29 U.S.C. §§ 157, 158(a)(3); 45 U.S.C. § 152 Eleventh. Unions designated as exclusive representatives were (and still are) obligated to represent all employees, union members or not, “fairly, equitably, and in good faith.” H.R. Rep. No. 2811, 81st Cong., 2d Sess., p. 4.
Described by Congress in the debates over the NLRA in 1935 as “Majority Rule,” S. Rep.
No. 74-573 at 47 (1935), so long as the union represents a majority of the employees in any given
bargaining unit, the employees in the minority cannot represent themselves or choose another
agent without first displacing the original. See, e.g., Stahulak v. City of Chicago, 184 Ill. 2d 176,
184 (1998) (“In exchange for benefits provided by collective bargaining agreement, [employee]
gave up his individual right to bargain with the City”); DelCostello v. Teamsters, 462 U.S. 151,
161, n.14 (1983) (duty of fair representation exists because it is the national labor policy to allow
a single organization to represent all employees in a unit “thereby depriving individuals in the unit
of the ability to bargain individually or to select a minority union as their representative.”).
In order to protect the rights of the minority, the IPLRA adopted the duty of fair
representation. 5 ILCS 315/10(b)(1)(ii). The exclusive bargaining representative cannot
discriminate against nonmembers, and must represent them fairly, honestly, and in good faith. 5
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ILCS 315/6(d), 10(b)(1)(ii); Metro. All. of Police v. State Labor Relations Bd., Local Panel, 345
Ill. App. 3d 579, 587 (1st Dist. 2003); c.f., Vaca v. Sipes, 386 U.S. 171, 190 (1967) (a breach of
the duty of fair representation occurs only when a union’s conduct towards a bargaining unit
member is “arbitrary, discriminatory, or in bad faith”); Steele, 323 U.S. at 202-203 (under the
RLA, 45 U.S.C. § 151, et seq., exclusive representative of employees has “duty to exercise fairly
the power conferred upon it on behalf of all for whom it acts without hostile discrimination against
them.”).
Section 10(b)(1)(ii) of the IPLRA requires public sector unions to represent nonmembers
fairly during collective bargaining and throughout any grievance procedure. 5 ILCS
315/10(b)(1)(ii); see also Cintron v. AFSCME, Council 31, No. S-CB-16-032, p. 1, 34 PERI ¶ 105
(ILRB Dec. 13, 2017) (union may not intentionally direct “animosity” toward nonmembers based
on their “dissident union practices”). The same “fair representation” section of the IPLRA allows
unions to negotiate provisions requiring payment of fair share fees that it can charge nonmembers
for the cost of representation as a condition of employment. 5 ILCS 315/5(d)(e); 5 ILCS
315/10(b)(1)(ii). Under this fair share structure, each employee in the bargaining unit pays his or
her equal share of the cost of representation, and no employee is forced to subsidize the
representation of another employee. The proximity of these two subsections, and the legislative
history, shows the obligations of fair representation and payment of fair share fees were mutual.
Janus disrupts this mutuality and unconstitutionally shifts the cost of representing nonmembers to
union members alone.
B. After Janus, Public Sector Unions Can Require Nonmembers to Pay for Services or Deny Them Representation.
Following the Janus decision, the cost of the Union’s representation shifted from each
employee in the public sector bargaining unit to only those who are union members. The presence
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of one or more nonmembers in a bargaining unit does not increase the costs associated with
negotiating a contract for the entire bargaining unit. There are certain fixed costs associated with
negotiating a labor agreement and these costs do not increase if some members in the bargaining
unit choose not to pay union dues. Employees and unions provide representation principally to
negotiate an agreement. That process is conducted on a regular basis—customarily every three
years, but not necessarily so. The timing of this expense is fixed by contract-expiration dates for
which the union can budget.
In contrast, a union incurs variable costs representing a nonmember in grievance arbitration
that it will never recoup. The arbitration of individual employee disciplinary grievances can be an
expensive enterprise (ECF Doc. #67, Facts ¶ 18 at p. 5). Such cases can routinely exceed $5,000.00
in out-of-pocket costs alone (id.). Such costs are variable because the number of grievances in any
given year is unpredictable. Whether to pursue any given grievance, how to staff it, and whether
to settle are all within the union’s discretion—subject to its duty of fair representation. In this
scenario, a non-dues-paying member will receive statutorily mandated services from a union at no
cost. This is the classic definition of a free-rider.
It is unconstitutional, however, for the union and its public sector members to be forced to
subsidize nonmembers in resolving their individual disputes. Post-Janus, nonmembers are taking
the position that unions are now forced to represent them under penalty of an unfair labor practice
proceeding (ECF Doc. #76, Facts § 19, at p. 6, App. at 19). Forced representation of public sector
nonmembers in an arbitration proceeding violates the First Amendment rights of the union and its
members. By statutorily requiring the Union to represent nonmembers via Section 10(b)(1)(ii) of
the IPLRA, the members and/or Union would be forced to subsidize the speech of the nonmembers
in the bargaining unit. These free-riders increase the financial burden on dues-paying members
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and adversely affect the members’ ability to pursue collective efforts. The alternative is to reduce
services as revenues decline. But this too violates the rights of the Union and its members by
burdening their speech.
Local 150 fully intends to honor its obligations as the exclusive representative of the
employees it represents in negotiating contracts for its public sector units which apply equally to
everyone (ECF Doc. #67, Facts ¶ 22, at p. 6). If Section 10(b)(1)(ii) of the IPLRA were struck
down as unconstitutional at least with respect to grievance-processing on behalf of free-riding
nonmembers, Local 150 and its members would be permitted to exercise freely their right to speak
and associate without the consequence of being penalized for violating the IPLRA.
The Supreme Court’s suggested “less restrictive alternative” is an appropriate way to avoid
the Constitutional problem presented by the IPLRA’s duty of fair representation provisions.
“Individual nonmembers could be required to pay for [representation in disciplinary matters] or
could be denied union representation altogether.” Janus, 138 S.Ct. 2468-2469. Now that the fair
share fee component of the statute has been eliminated, the reciprocal requirement of fair
representation of nonmembers—at least with respect to grievance-processing for free—should
likewise fall. The result would be a regime in which unions would only be forced to represent
dues-paying members; nonmembers get the services for which they pay.
C. The Right of Individual Employees to Pursue Their Own Grievances Is an Exception to Exclusive Representation.
The Supreme Court’s distinction in Janus between the obligations of an exclusive
bargaining representative in contract negotiations and grievance-handling is consistent with the
IPLRA and longstanding historical precedent. Section 6(b) of the IPLRA expressly grants
individual employees the right to advance grievances through the contractual grievance procedure
culminating in binding arbitration independent of the union. 5 ILCS 315/6(b). It states:
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Nothing in this Act prevents an employee from presenting a grievance to the employer and having the grievance heard and settled without the intervention of an employee organization; provided that the exclusive bargaining representative is afforded the opportunity to be present at such conference and that any settlement made shall not be inconsistent with the terms of any agreement in effect between the employer and the exclusive bargaining representative.
This provision is based upon historical precedent found in the RLA, as well as the NLRA.
The RLA guarantees to individual employees the right to progress their own grievances to
arbitration without their union’s consent and without their union’s representation. 45 U.S.C. § 153,
First (i), (j); Essary v. Chicago & N.W. Ry. Co., 618 F.2d 13, 17, n.6 (7th Cir. 1980) (employee
ability to appeal grievance to the Adjustment Board himself distinguishes case from Vaca where
union has “sole power to invoke the stages of the grievance procedure”).
Similarly, Section 9(a) of the NLRA provides that: “any individual employee or a group of
employees shall have the right at any time to present grievances to their employer and to have such
grievances adjusted, without the intervention of the bargaining representative, as long as the
adjustment is not inconsistent with the terms of the collective bargaining contract or agreement
then in effect,” and the bargaining representative is allowed to be present. 29 U.S.C. § 9(a).
According to the NLRB, in Hughes Tool Co., 56 NLRB 981, 982-983 (1944):
We interpret the proviso to Section 9(a) of the Act to mean that individual employees and groups of employees are permitted “to present grievances to their employer” by appearing in[sic] behalf of themselves—although not through any labor organization other than the exclusive representative—at every stage of the grievance procedure, but that the exclusive representative is entitled to be present and negotiate at each such stage concerning the disposition to be made of the grievance. If, at any level of the established grievance procedure, there is an agreement between the employer, the exclusive representative, and the individual or group, disposition of the grievance is thereby achieved. Failing agreement of all three parties, any dissatisfied party may carry the grievance through subsequent machinery until the established grievance procedure is exhausted.
Such provisions are also common to state public labor relations laws throughout the United States.
See, e.g., Minnesota, Minn. Stat. Ann. § 176.16 (“provided, that any individual employee or group
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of employees shall have the right at any time to present grievances to their employer in person or
through representatives of their own choosing.”); Washington, Wash. Rev. Code Ann. § 41.56.080
(“PROVIDED, that any public employee at any time may present his or her grievance to the public
employer and have such grievance adjusted without the intervention of the exclusive bargaining
representative…”); see also Cone v. Nevada Service Employees Union/SEIU Local 1107, 116 Nev.
473, 477-478 (2000) (exclusive representative status does not prohibit unions from charging non-
union members service fees for individual representation; implicit in statute which authorizes
individual to forge union representation and act on his own behalf is that he pay for his own
grievance).
Modeled after the NLRA as it is, the IPLRA makes the rights of individual employees
explicit: “Nothing in this Act prevents an employee from presenting a grievance to the employer
and having the grievance heard and settled without the intervention of an employee organization.”
5 ILCS 315/6(b). “Nothing in this Act” obviously includes the union’s exclusive representative
status.3 Janus reinforces this right not to associate with the union by giving it First Amendment
protection. That right, on behalf of the union and its members, is reciprocal.
The ability of individual employees to advance grievances themselves is therefore an
exception to the exclusive representation provision of the IPLRA. In their discussion of whether
a breach of the duty of fair representation would constitute an unfair labor practice under Section
6(d) of the IPLRA, the Whiteside commentators suggested that “a factor in that determination
would be whether the employee has the right to invoke grievance arbitration independently of the
exclusive representative.” Whiteside, supra, at 923. They concluded that, “If employees are
3 This is consistent with post-Janus advice offered by the Illinois Attorney General’s office. In the Press Release issued July 20, 2018, the Attorney General stated that “Janus does not change any of the other rights and obligations regarding public and educational employment under Illinois law” (ECF Doc. #72, Additional Facts ¶ 1, Ex. B, at p. 1).
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granted independent access to the grievance resolution process it is less likely that an unwarranted
refusal by a representative to seek redress of an employee’s grievance would amount to an unfair
labor practice.” Id.
The Illinois commentators were correct in 1984 when they suggested individual employee
access to the grievance procedure made it “less likely that an unwarranted refusal” by the union to
process an employee’s grievance would amount to an unfair labor practice for breach of the duty
of fair representation. The IPLRA already authorizes Illinois unions to refuse to process
unmeritorious grievances. 5 ILCS 315/6(d). So too does the federal common law. Vaca, 386 U.S.
at 190. And while in Vaca the Supreme Court extended the federal duty of fair representation to
the union’s handling of grievances, its formulation that unions could not refuse to process
grievances for reasons that were “arbitrary, discriminatory, or in bad faith” is consistent with a
refusal to process grievances for free.
Under Illinois law, the public sector exclusive bargaining representative cannot
discriminate against nonmembers, and must represent them fairly, honestly, and in good faith. 5
ILCS 315/6(d), 10(b)(1)(ii); Metro. All. of Police, 345 Ill. App. 3d at 587; c.f., Vaca, 386 U.S. at
190 (a breach of the duty of fair representation occurs only when a union’s conduct towards a
bargaining unit member is “arbitrary, discriminatory, or in bad faith”). After Janus, a public sector
union’s refusal to process a grievance on behalf of a free-riding nonmember can no longer breach
its duty of fair representation (“DFR”).
As used in DFR jurisprudence, a decision is “arbitrary” if it is outside the “wide range of
reasonableness” afforded union decision-makers. Ford Motor Co. v. Hoffman, 345 U.S. 330, 338
(1953). Certainly, a union can take into account the costs of processing grievances in its decisions
to pursue them—costs imposed on the union’s treasury itself funded by member dues. See Moore
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v. Sun Beam Corp., 459 F.2d 811, 820 (7th Cir. 1972). Assessing whether costs of representation
are reasonable is routinely done by lawyers and courts in fee-shifting contexts. E.g., Hensley v.
Eckerhart, 461 U.S. 424, 433 (1983) (the “lodestar” method of calculating reasonable attorney’s
fees is the market rate of attorney fees multiplied by the reasonableness of hours expended on the
matter.). Basing a decision on whether the individual grievant has paid for the union’s services is
not unreasonable or in any way arbitrary.
The “discrimination” forbidden under the DFR standards is, at its roots, invidious
discrimination. See, e.g., Steele, 323 U.S. at 199-201 (prohibiting discrimination based on race);
see also Roberts, 468 U.S. at 623 (freedom not to associate outweighed by gender discrimination).
In Steele, the Supreme Court’s focus was on the obligation of the union as the exclusive
representative not to discriminate based upon race of nonmembers in negotiating a contract. 323
U.S. at 199. “Since petitioner and the other Negro members of the craft are not members of the
Brotherhood or eligible for membership, the authority to act for them is derived not from their
action or consent, but wholly from the command of the Act.” Id. Hence, the Court explained (id.
at 201):
Unless the labor union representing a craft owes some duty to represent non-union members of the craft, at least to the extent of not discriminating against them as such in the contracts which it makes as their representative, the minority would be left with no means of protecting their intersts[sic], or indeed, their right to earn a livelihood by pursuing the occupation in which they are employed.
It would defeat the purpose of the RLA to avoid “any interruption of commerce” or “the operation
of any carrier engaged therein,” moreover, “if a substantial minority of the craft were denied the
right to have their interests considered at the conference table.” Id. at 199-200. The Court added,
“if the final result of the bargaining process were to be to sacrifice of the interests of the minority
by the action of the representation of the majority…the only recourse of the minority would be to
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strike, with the attendant interruption of commerce, which the Act seeks to avoid.” Id. at 200; see
also Vaca, 386 U.S. at 191-192 (individual employee has no absolute right to have grievances
taken to arbitration, “the most costly and time consuming step in the grievance procedure”).
There is nothing unlawfully discriminatory about charging public sector nonmembers the
cost of representing them in grievances. Members’ dues in this context are analogous to insurance
premiums; members may never need the union’s representation in an individual grievance but reap
the advantages of pooled resources when they do and peace of mind if they do not. Nonmembers
can assume the entire risk, hoping they never need to process a grievance at all, or paying for it
themselves as is their right under the IPLRA. But if they want the union’s help, it is not unlawful
discrimination to make them pay for it like everybody else.
Nor is it “bad faith” to assess the costs of representation in grievance-handling to
nonmembers. “Bad faith” in the DFR context usually connotes dishonesty or deception on the part
of the union representative. Employee and Union Member Guide to Labor Law, § 11:7 at 11-20
(Thomson Reuters, Rel. 32, 5/2019). The terms of such representation can easily be presented to
nonmembers to make an informed, rational economic decision. Categories of out-of-pocket costs
such as court reporters and arbitrators’ per diem fees are known in advance. Fixed costs such as
staff time, attorneys’ fees, and other overhead can be reduced to hourly fees. Local 150’s
experience allows it to estimate the costs of a termination arbitration at about $5,000.00 plus staff
time (ECF Doc. #67, Facts ¶ 18, at p. 5). Assessing such charges on nonmembers—advertised
upfront and verified by audit later—are consistent with fair business practices generally and in no
way amount to “bad faith.”
The IPLRA imposes upon exclusive representatives a duty to represent all bargaining unit
members fairly, as that concept is informed by private sector caselaw. Whiteside, supra at 923;
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5 ILCS 315/6(d). Federal law posits that employees have no “absolute right” to have grievances
taken to arbitration. Vaca, 386 U.S. at 191-192. The IPLRA, moreover, expressly recognizes the
right of exclusive representatives “to refuse to process grievances of employees that are
unmeritorious.” 5 ILCS 315/6(d); and requires a showing of “intentional misconduct” in unfair
labor practice cases charging a breach of the DFR. 5 ILCS 315/10(b)(1)(ii). Individual employees
can pursue their own grievances without the help of the union. 5 ILCS 315/6(b). After Janus, the
public sector union need not pay for those grievances.
D. The Janus Alternative Is an Accommodation to Unions for the Deprivation of Fair Share Fees and Does Not Undermine Exclusive Representation.
The District Court’s reliance on Minnesota v. Knight, 465 U.S. 271 (1984), Hill v. Service
Employees International Union, 850 F.3d 861 (7th Cir. 2017), cert. denied, 138 S.Ct. 446 (Nov.
13, 2017), and Janus v. AFSCME Council 31, 942 F.3d 352 (7th Cir. 2019), is misplaced. In its
decision granting the State summary judgment, the District Court said (ECF Doc. #81, App. at 4):
In Knight, the Supreme Court held that Minnesota’s system of exclusive union representation did not violate First Amendment speech or associational rights of non-union members. Id. at 288. Based on Knit[sic], the Seventh Circuit has concluded “the IPLRA’s exclusive-bargaining-representative scheme is constitutionally firm and not subject to heightened scrutiny.” Hill v. Service Employees Int’l Union, 850 F.3d 861, 864 (7th Cir. 2017). Knight directly controls Local 150’s arguments and is still binding upon the lower courts until the Supreme Court overrules it. See, e.g., Price v. City of Chicago, 915 F.3d 1107, 1111 (7th Cir. 2019) (citing Agostini v. Felton, 521 U.S. 203, 237-38, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997)).
In Knight, the Supreme Court held that “a Minnesota law giving elected bargaining units
exclusive power to ‘meet and confer’ with employers did not interfere with the employees’ First
Amendment associational rights. [465 U.S.] at 273.” Hill, 850 F.3d at 864. In Hill, this Court
explained (id.):
Similarly, here, appellants do not need to join the SEIU or financially support it in any way. They are also free to form their own groups, oppose the SEIU, and present
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their complaints to the State. Thus, under Knight, the IPLRA’s exclusive-bargaining-representative scheme is constitutionally firm and not subject to heightened scrutiny.
In Janus, the Supreme Court said, “In simple terms, the First Amendment does not permit the
government to compel a person to pay for another’s speech just because the government thinks
that speech furthers the interests of the person who does not want to pay.” 138 S.Ct. at 2467. The
Court observed that the state requirements that a union serve as exclusive bargaining agent for its
employees was “itself a significant impingement on associational freedoms that would not be
tolerated in other contexts.” Id. at 2478. But the Court added, “we simply draw the line at allowing
the government to go further still and require all employees to support the union irrespective of
whether they share its views.”4 Id. at 2468.
Again, Local 150 is not challenging the principle of exclusive representation or its
codification in 5 ILCS 315/6(c). The Union’s challenge is to the duty of fair representation as it
applies to individual employee grievances. Because individual employees are allowed by statute
to present their own grievances, the Union’s representation in this respect is not exclusive. This
exception to exclusive representation should allow unions to decline to represent public sector
nonmembers for free. Denying nonmembers the experience and skill of union representation in
grievance-handling such as in disciplinary matters or charging them for such services is the
4 Hence, like this Court in Hill, the federal courts have consistently rejected post-Janus challenges to exclusive representation based upon Knight and Janus itself. See., e.g., Montele v. Inslee, 916 F.3d 783, 789 (9th Cir. 2019) (the court explained it was “unwilling to make [the] leap” that Janus overruled Knight sub-silencio, especially where the same passage in Janus relied on by nonmembers “goes on to expressly affirm the propriety of mandatory union representation.”), cert. pending, sub nom. Miller v. Inslee, Case No. 18-1492; Grossman v. Hawaii Government Employees Ass’n/AFSCME Local 152, 382 F. Supp. 3d 1088 (D. Haw. 2019) (“Nothing in the Janus reasoning…calls into question the holding in Knight regarding exclusive representation.”); O’Callaghan v. Regents of the University of California, 2019 WL 2635585 at *4 (C.D. Cal. 2019) (Janus suggests that state interest in labor peace “can still justify a union acting as an exclusive representative for members and nonmembers alike.”).
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solution to the free-rider problem “significantly less restrictive of associational freedoms”
suggested by the Court in Janus. 138 S.Ct. at 2468-2469.
The historic linkage of compensating unions for their services as the solution for the free-
rider problem demands this result. The Supreme Court’s extensive discussion of the legislative
history of the Taft-Hartley Amendments to the NLRA amply demonstrates that abolition of the
“closed shop” was a key concern of the members of Congress. Communications Workers of
America v. Beck, 487 U.S. 735, 747-748 (1988).5 Nevertheless, that legislative history also
demonstrates that Congress was “equally concerned” that its efforts would permit “free riders.”
Id. at 748. As the Supreme Court explained in NLRB v. General Motors Corp., the Taft-Hartley
Amendments “were intended to accomplish twin purposes” (373 U.S. 734, 740-741 (1963)):
On the one hand the most serious abuses of compulsory unionism were eliminated by abolishing the closed shop. On the other hand, Congress recognized that in the absence of a union-security provision, “many employees sharing the benefits of what unions are able to accomplish by collective bargaining will refuse to pay their fair share of the costs”…[The] amendments were intended only to remedy the most serious abuses of compulsory union membership and yet give employers and unions who feel that such agreements promoted stability by eliminating free riders the right to continue such arrangements.
As Senator Taft explained (93 Cong. Rec. 3837, Leg. Hist. 1010), the legislation “in effect…say[s]
that no one can get a free ride in such a shop. That meets one of the arguments for a union shop.
The employee has to pay the dues.” Beck, 487 U.S. at 749, n.5.
5 Congress considered two distinct vehicles to prohibit the closed shop: amendments to the NLRA’s § 8(a)(3) proviso that allowed such contracts; and so-called “Right-to-Work” laws which authorized states to pass legislation prohibiting them. Many states had already passed laws prohibiting the closed shop. In the run-up to the passage of Taft-Hartley, several more did so, many under the banner of the “Right-to-Work.” See, e.g., Arizona Ban on Closed Shop, 20 LRRM 3005 (1947); Iowa Ban on Closed Shop, 20 LRRM 3007 (1947); Virginia Anti-Closed Shop Law, 19 LRRM 3023 (1947); Tennessee Anti-Closed Shop Law, 19 LRRM 3034 (1947); North Dakota Ban on Closed Shop, 19 LRRM 3045 (1947); Georgia Ban on Closed Shop, 19 LRRM 3045 (1947).
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In Abood, the Supreme Court ruled that unions representing public employees could
constitutionally assess nonmembers an “agency fee” for representing them in collective
bargaining. Janus, 138 S.Ct. at 2460-2461. While the unions could not require nonmembers to
support political causes with which they disagreed, the First Amendment did not bar compelled
payments of fees to be used in support of collective bargaining, contract-administration, and
enforcement. Id.
The Court’s decision in Abood became the fulcrum upon which the rights of dissenting
members of various organizations were balanced against those of the organization majority. In
Beck, the court sidestepped the First Amendment question and focused on a statutory construction
of NLRA Section 8(a)(3). Beck, 487 U.S. at 761. In finding that its nearly identical language to
Section 2, Eleventh, of the RLA prohibited the expenditure of compelled fees on political causes,
the court nevertheless found that both were “designed to remedy inequities posed by ‘free-riders’
who would otherwise profit from the Taft-Hartley Act’s abolition of the closed shop.” 487 U.S.
at 753-754. Hence, compelled payment of fair share fees for expenditures “germane to collective
bargaining” become the model for labor relations in both the private and public sector. See also
Marquez v. Screen Actors Guild, 525 U.S. 33, 46 (1998) (“After we stated that the statutory
language [of NLRA § 8(a)(3)] incorporates an employee’s right to pay for only representational
activities,” the Court cannot fault unions for framing union security clauses in that language).
Illinois expressly relied on Abood in linking fair share payments to the duty of fair representation
in the IPLRA.
When the Supreme Court found a new constitutional right in Janus, it gave short shrift to
the Taft-Hartley compromise that required the payment for services received regardless of
membership. Recognizing this dramatic departure, it offered its “less intrusive” alternative: unions
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should be allowed to charge for their representational services in processing grievances or decline
to represent nonmembers altogether. Simple fairness requires this Court to accept that alternative
as it applies to the IPLRA.
CONCLUSION For all the above reasons, the Court should reverse the decision of the District Court and
direct it to enter judgment for Local 150.
Dated: January 21, 2020 Respectfully submitted, By: /s/ Dale D. Pierson One of the Attorneys for Plaintiffs-Appellants Attorneys for Plaintiffs-Appellants: Dale D. Pierson ([email protected]) Kara M. Principe ([email protected]) Robert A. Paszta ([email protected]) Joseph Sweeney ([email protected]) James Connolly, Jr. ([email protected]) Indiana, Illinois, Iowa Foundation Local 150 Legal Department for Fair Contracting 6140 Joliet Road 6170 Joliet Road Countryside, IL 60525 Countryside, IL 60525 Ph. 708/579-6663 Ph. 815/254-3332 Fx. 708/588-1647 Fx. 815/254-3525
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CERTIFICATE OF COMPLIANCE
The undersigned, counsel of record for Plaintiffs-Appellants furnish the following in
compliance with F.R.A.P Rule 32(a)(7):
1. I hereby certify that this brief conforms to the rules contained in F.R.A.P Rule
32(a)(7) for a brief produced with a proportionally spaced font.
2. The length of this brief is 8,706 words, excluding the parts of the brief exempted
by Fed. R. App. P. 32(a)(7)(B)(iii) (the corporate disclosure statement, tables of contents and
citations, and certificates).
By: /s/ Dale D. Pierson One of the Attorneys for Plaintiffs-Appellants Attorneys for Plaintiffs-Appellants: Dale D. Pierson ([email protected]) Kara M. Principe ([email protected]) Robert A. Paszta ([email protected]) Joseph Sweeney ([email protected]) James Connolly, Jr. ([email protected]) Indiana, Illinois, Iowa Foundation Local 150 Legal Department for Fair Contracting 6140 Joliet Road 6170 Joliet Road Countryside, IL 60525 Countryside, IL 60525 Ph. 708/579-6663 Ph. 815/254-3332 Fx. 708/588-1647 Fx. 815/254-3525
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CERTIFICATE OF SERVICE The undersigned, an attorney of record, hereby certifies that on January 21, 2020, he electronically filed the foregoing with the Clerk of Court using the CM/CM/ECF system, which sent notification to the following:
Frank H. Bieszczat ([email protected]) Illinois Attorney General’s Office – Civil Appeals Division
100 West Randolph Street, 12th Floor Chicago, IL 60601 Ph. 312/814-3312
By: /s/ Dale D. Pierson One of the Attorneys for Plaintiffs-Appellants Attorneys for Plaintiffs-Appellants: Dale D. Pierson ([email protected]) Kara M. Principe ([email protected]) Robert A. Paszta ([email protected]) Joseph Sweeney ([email protected]) James Connolly, Jr. ([email protected]) Indiana, Illinois, Iowa Foundation Local 150 Legal Department for Fair Contracting 6140 Joliet Road 6170 Joliet Road Countryside, IL 60525 Countryside, IL 60525 Ph. 708/579-6663 Ph. 815/254-3332 Fx. 708/588-1647 Fx. 815/254-3525
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CIRCUIT RULE 30(D) STATEMENT I certify that the short appendix contained in the Brief of Plaintiffs-Appellants contains all
materials required by parts (a) and (b) of Circuit Rule 30.
By: /s/ Dale D. Pierson One of the Attorneys for Plaintiffs-Appellants Attorneys for Plaintiffs-Appellants: Dale D. Pierson ([email protected]) Kara M. Principe ([email protected]) Robert A. Paszta ([email protected]) Joseph Sweeney ([email protected]) James Connolly, Jr. ([email protected]) Indiana, Illinois, Iowa Foundation Local 150 Legal Department for Fair Contracting 6140 Joliet Road 6170 Joliet Road Countryside, IL 60525 Countryside, IL 60525 Ph. 708/579-6663 Ph. 815/254-3332 Fx. 708/588-1647 Fx. 815/254-3525
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REQUIRED SHORT APPENDIX Memorandum Opinion and Order Granting Defendants’ Motion for Summary Judgment (Doc. #81) ........................................................................................................................................1 Memorandum Opinion and Order Granting in Part, Denying in Part Defendants’ Motion to Dismiss (Doc. #52) ..........................................................................................................................6 Defendants’ Responses to Local 150’s Statement of Uncontested Material Facts (Doc. #76)........................................................................................................................................................14
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